constitutional law

Constitutional Law

Marbury v. Madison

Marbury v. Madison, one of the first Supreme Court cases asserting the power of judicial review, is an effective argument for this power; however, it lacks direct textual basis for the decision. Marshall managed to get away with this deficiency because of the silence on many issues and the vague wording of the Constitution. During the early testing period when few precedents existed, there was much debate about fundamental issues concerning what was intended by the words of the

Constitution and which part of government should have the final word in defining the meaning of these words. Marshall used the Marbury case to establish the Supreme Court's place as the final judge.

Marshall identified three major questions that needed to be answered before the Court could rule on the Marbury v. Madison case. The first of these was, "Has the applicant a right to the commission he demands?" The Constitution allows that "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, . . . " (Art. II, § 2). The Judiciary Act of 1793 had given the

President the right to appoint federal judges and justices of the peace; there is no dispute that such an appointment was within the scope of the president's powers. Debate arises because the Constitution is silent on the exact time at which the appointment is considered complete. The Supreme Court ruled that "when a commission has been signed by the president, the appointment is made; and that the commission is complete, when the seal of the United States has been affixed to it by the [secretary of state]." This ruling does not have direct constitutional support, but it is not an unreasonable decision.

The second question which Marshall addressed was, "If [Marbury] has a right, and that right has been violated, do the laws of this country afford him a remedy?" The answer is logically yes although there are no specific words in the Constitution to support such an answer. Based on the type of government intended by the Constitution, the government is expected to protect individual liberty. As Marshall says, "[The government] will certainly cea...

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...urthermore, the president also was not in a position to allow the federal government more leeway in interpreting their powers. He does not make any laws of his own and has no power to settle any questions of the states. Clearly, the Supreme Court was the branch that could most easily facilitate the strengthening of the national government into an effective and unified nation rather than thirteen independent countries as the states had seemed under the Articles of Confederation.

Critics will protest that the people do not elect the Supreme Court

Justices and therefore the Supreme Court should not have the power of judicial review. As McCloskey points out, "No institution in a democratic society could become and remain potent unless it could count on a solid block of public opinion that would rally to it's side in a pinch." Clearly, the Supreme Court is ultimately responsible to the will of the people. By maintaining independence from politics, the Justices avoid the major problems of political parties and party platforms.

Furthermore, the Supreme Court's small size allows the Constitution to speak with a unified voice throughout the country.